April 19, 2006
Federal Judge Warns New York Legislators about the Necessity of Additional Child Welfare Agency Funding
The federal judge overseeing a class-action lawsuit against New York's child welfare agency warned Tuesday that failing to support increased funding for the state's child welfare system would undermine a court-ordered overhaul. It is believed that his comments were directed at state legislators, who are considering a proposal to increase funds $52 million, from about $200 million. Source. Richard G. Jones, Tina Kelley, The New York Times, civilrights.org. For the complete story, please click here (last visited April 19, 2006, reo).
April 12, 2006
Illinois Former Boyfriend and Sperm Donor Sued for Child Support
An Illinois sperm donor whose sperm was used to artificially impregnate his former girlfriend is being sued for child support. The in-vitro fertilization of the woman led to the birth of twin daughters. Both 45, the couple met on a dating web site and had a relationship for about 15 months. He claims he had no intention of doing anything more than provide his girlfriend with semen she needed to conceive, although he allowed his name to be put on the birth certificates. Her attorney claims he has “concocted” a story to extricate himself from having to pay child support. His lawyer claims it is a case of “involuntary parentage.” Source: Steve Patterson, Chicago Sun Times, suntimes.com. For the complete story, please click here (last visited April 12, 2006, reo).
April 02, 2006
South Dakota Court is Unsympathetic to Obligor Claiming Perjury and Refusing to Produce Work Records
The South Dakota Supreme Court had little sympathy for a child support obligor who claimed that his ex-wife and a lawyer appointed as a referee in a child-support hearing should be jailed for perjury. In a unanimous opinion, the court ruled that the obligor failed to prove that his ex-wife and a lawyer appointed as a referee in a child-support hearing had perjured themselves. It also ruled that the obligor must pay $562 a month in child support. This figure was arrived at when the obligor refused to turn over employment records to the appointed referee and the referee then went to the state Labor Department records, which indicated that the obligor’s wages averaged about $2,700 a month. It is reported that since the obligor’s 1999 divorce, there have been 52 motions filed in the case, most by the obligor. Source. AP, Joe Kafka, AberdeenNews.com. For the complete story, please click here (last visited April 2, 2006, reo). Please_click_here_for_South_Dakota_perjury_slip_opinion.pdf
March 26, 2006
Daughter May Not Sue Dad For Child Support Mom Didn’t Seek
In a case of first impression in that state, the Pennsylvania Supreme Court ruled last week that the adult daughter of a failed marriage as a third party cannot sue her father to enforce a child support provision from her parents' property settlement agreement that would benefit her directly. However, the justices split over the issue of whether the result should be based on contract law or public policy gounds. Asher Hawkins of the The Legal Intelligencer has provided an initial analysis of the decision on the Law.com website. Source: Asher Hawkins, Legal Inteligencer, Law.com. Asher Hawkins analysis of this case may be found here (last visited March 26, 2006, reo).
Wheamei Jenq Chen v. Chen, 2006 Pa. LEXIS 253 (March 20, 2006)
March 18, 2006
Case Law Development: Ohio Surrogate Mom Must Repay Her Fee to Biological Father Because She Won Custody of Children
In an ongoing battle between the courts of Ohio and Pennsylvania, the latest ruling comes from Ohio where the surrogate mother, who was awarded custody of triplets she delivered, must repay the biological father her $20,000 surrogate's fee and the child support he was required to pay for the three boys. Although a Pennsylvania court had ruled that the contract between the parties was void, in a unanimous ruling Wednesday, the 9th Ohio District Court of Appeals said the surrogate mother had violated her surrogate's agreement when she claimed the triplets as her own after their birth and took them home to Pennsylvania. The contract contained language that required the surrogate and her spouse to surrender custody of the children following their birth. It also contained language stating that if the agreement was breached, the surrogate and her spouse would reimburse the biological father, a 64 year old professor at Cleveland State University.
The court ruled that “upon undisputed evidence that the surrogate and her spouse breached the contract and the conclusion that the contract is enforceable,” the surrogate and her spouse are liable for restitution of the monies paid by the biological father, “as well as attorney fees as may be determined by the common pleas court on remand.” Moreover, they are liable “for all monies the biological father has been required to pay to them by court order, such as child support.” J.F. v. D.B., filed March 15, 2006. Ohio Ninth Circuit Court of Appeals. You may download the Ohio_Court_of_Appeals_surrogate_slip opinion here.pdf (reo)
March 17, 2006
Case Law Development: Child Support Adjustments Based on Percentage of Residential Time Applies only to Parents Actively Exercising Overnight Visitation
The Florida Court of Appeals affirmed a trial court's award of child support based on the actual time the non-custodial parent exercised visitation rather than the time agreed to in the parenting plan. Florida statutes provides an adjustment to child support in situations in which children spend more than forty percent of their time with one parent. Here, Father had the right to alternate weekend visitation beginning on Thursdays (which, combined with other visitation would have amounted to more than 40 percent), but in fact only took the children beginning on Fridays. The court held that the trial court acted properly in calculating Father's child support without applying the 40 percent adjustment because that rule only applies to parents actively exercising overnight visitation for forty percent of the nights of the year, rather than parents simply having that entitlement.
Font v. Mastrapa-Font, 2006 Fla. App. LEXIS 3553 (March 15, 2006)
Opinion on the web (last visited March 17, 2006 bgf)
March 12, 2006
Men's Rights Advocacy Group Challenges Michigan’s Child-Support Law in Federal Court
A men's rights advocacy group, The National Center for Men, filed a lawsuit on Thursday in the United States Federal District Court in Detroit alleging that Michigan’s child-support law is unconstitutional because it violates reproductive rights established in Roe v. Wade. The suit claims that a lack of reproductive rights for men violates the equal protection clause of the Constitution. Source: Kaisernetwork.org. Please click here for the complete story (last visited March 12, 2006, reo).
March 10, 2006
Case Law Development: New Jersey Supreme Court Requires Appointed Counsel for Indigent Parents Facing Coercive Incarceration for Non-payment of Child Support
The New Jersey Supreme Court has joined a number of other states in concluding that, even when a court is pursuing civil child support enforcement proceedings, if an indigent litigant faces a risk of incarceration, he or she has a right to assigned counsel. The Court rejected the contention that a judge can adequately protect an indigent parent by conducting a "thorough and searching ability-to-pay hearing. However well intentioned and scrupulously fair a judge may be, when a litigant is threatened with the loss of his or her liberty, process is what matters." The court concluded that from now on in enforcement hearings, "parents facing potential incarceration must be advised of their right to appointed counsel if they are indigent and, on request and verification of indigency, must be afforded counsel. Otherwise incarceration may not be used as an option to coerce compliance with support orders."
In considering the practical implications of its ruling the court commented: "We realize that unless there is a funding source for the provision of counsel to indigent parents in [child support enforcement] proceedings, coercive incarceration will not be an available sanction. We will not use our authority to impress lawyers into service without promise of payment to remedy the constitutional defect in our system. The benefits and burdens of our constitutional system must be borne by society as a whole. In the past, the Legislature has acted responsibly to provide funding to assure the availability of constitutionally mandated counsel to the poor. We trust that the Legislature will address the current issue as well."
Pasqua v. Council, 2006 N.J. LEXIS 171 (March 8, 2006)
Opinion on the web (last visited March 9, 2006 bgf)
Case Law Developments: Acceptance of Child Support Requires Dismissal of Appeal Contesting Parentage
The Supreme Court of Delaware held that Mother's action to establish child support and acceptance of support payments from her partner required dismissal of the appeal from the trial court's award of joint custody. The disputing parents in this case are two women who, during the course of their nine-year relationship bore four children by artificial insemination from the same anonymous donor. One mother gave birth to triplets and several years later, the other mother had a daughter. The couple and the four children lived together until 2003, when the couple decided they could no longer live together. They agreed that the triplet's biological Mother would be the residential parent of the four minor children, with generous visitation for the biological Mother of the youngest daughter. After a few months, Mother of the youngest indicated that she would not abide by the agreement and took custody of the triplets.
In resolving the dispute, the trial court awarded both mothers joint custody, finding that the mother of the youngest daughter was a de facto parent to the triplets. The triplet's biological mother filed for child support and also appealed the trial court's action. The court of appeals determined that it need not reach the issue of whether Delaware recognized de facto parent status because the acceptance of benefits doctrine required dismissal of the appeal. "The "acceptance of the benefits" doctrine provides that an appeal from a judgment is prohibited when the appellant has voluntarily accepted benefits from that judgment."
Smith v. Smith, 2006 Del. LEXIS 113 (March 7, 2006)
Opinion on the web (last visited March 8, 2006 bgf)
March 07, 2006
Case Law Developments: Dealing with Depreciation Deductions in Calculating Child Support
The Nebraska and Iowa courts have addressed the proper method to address depreciation deductions in calculating income from self-employment for child support purposes. In both cases, the court had dissallowed the entirety of depreciation deductions in calculating the income of the self-employed farmer fathers.
In Nebraska, the supreme court concluded that, so long as deductions do not represent artificial treatment of assets for the purpose of avoiding child support obligations, the court should include depreciation deductions in calculating income, using the straight-line depreciation method. Only after arriving at a child support amount based on this income may the court consider whether a deviation from the presumed child support amount is necesssary. In this case, the trial court had determined that Husband - a self-employed farmer - was entitled to a depreciation deduction, but it did not then use the straight-line method for calculating the deduction. Rather, the court used Husband's depreciation figures from his taxes, which used a declining-balance method, and then added back one-half of the depreciated amounts in order to arrive at Husband's income for child support purposes. The Nebraska Supreme Court reversed because the trial court had manipulated the amount of income in order to vary the support amount under the guidelines. Instead, the court required trial courts to follow a strict two-step process: "Deviations from the guidelines must take into consideration the best interests of the child, and in the event of a deviation, the trial court must state the amount of support that would have been required under the guidelines absent the deviation and include the reason for the deviation in the findings portion of the decree or order ..."
Gress v. Gress, 271 Neb. 122; 2006 Neb. LEXIS 33 (March 3, 2006)
Opinion on the web (last visited March 6, 2006 bgf)
The Iowa Court of Appeals addressed the same issues, affirming the trial court's decision to disregard husband's depreciation deductions in order to provide adequate child support.
In re Marriage of Ruth, 2006 Iowa App. LEXIS 178 (March 1, 2006)
Opinion on the web (last visited March 6, 2006 bgf)
March 03, 2006
Case Law Development: Payor Spouse May not Adjust Agreed Child Support Downward Simply Because In Excess of Guidelines
Husband and Wife had agreed in their divorce that Husband would pay child support, including an annual 5% increase, and that Husband would share all medical expenses with Wife. When Wife brought an action to enforce that agreement, Husband countered with a petition to reduce supprot. The trial court granted Husband's motion, basing the downward modification on the fact that the support was in excess of child support guidelines. The Florida Court of Appeals reversed, reaffirming its position that payor spouses may not rely solely on the guidelines for modification of an agreed-to, judicially adopted child support order without a showing of independent changed circumstances.
Simmons v. Simmons, 2006 Fla. App. LEXIS 2771 March 1, 2006
Opinion on the web (last visited March 3, 2006 bgf)
Case Law Development: Lump Sum Personal Injury Award not Income for Purposes of Calculating Child Support
In an action to modify child support, the trial court denied mother's request that the court allocate to Father's income a portion of the $2,364,500 lump sum settlement of the personal injury lawsuit he had filed after having become disabled from dentistry after an accident in a store. The California Court of Appeal affirmed the trial court's order. The court held that the entirety of an unallocated, lump sum personal injury settlement or award is not income for purposes of calculating child support. Recognizing that that portion of a personal injury award that is intended to be compensation for loss of income and loss of earning capacity may be considered as income. However, the court recognized the fact-driven nature of the trial court's findings as to the purpose of the award and the allocation between that designed to compensate for earnings and that portion designed to compensate for pain and suffering. Thus, the decision is "best left to the discretion of the trial court, considering all the evidence before it." Here, the court noted that "any attempt to allocate the father's recovery among all the elements of his damages would have been pure speculation.... The mother offered to the trial court from the personal injury proceedings only the father's expert testimony on loss of profits and loss of net income. This presented such an incomplete picture of the father's total damages, that anything other than an arbitrary apportionment would have been impossible."
In re Marriage of Heiner, 2006 Cal. App. LEXIS 263 (February 27, 2006)
March 02, 2006
Australia Reforms Child Support System
"More than 300,000 divorced dads will have their maintenance bills slashed under the biggest reform of the child support system in almost 20 years. The $850 million overhaul will take more than two years to complete and will affect 1.1 million separated mothers and fathers.
At its heart is a new formula to calculate child support, which will give equal weight to the incomes of both parents for the first time. There are about 680,000 non-custodial parents in Australia – mostly fathers. About 55 per cent can expect to pay less support." By Jason Frenkel and Michael Harvey, Herald Sun Link to Article (last visited 3-1-06 NVS)
February 28, 2006
Case Law Development: Court May Assert Jurisdiction to Award Child Support for Disabled Child Over 18 Years Old
The Ohio Court of Appeals resolved a jurisdictional challenge to a trial court's child support order in a case in which Mother sued for divorce and child support for the couple's child who, although over 18 years of age, had Downs Syndrome and was unable to be self-supporting. Father argued that because the court had not asserted jurisdiction over the child while still under age 18, the court lacked jurisdiction to award child support.
The appellate court upheld the trial court's child support order, holding that the child, "as one undisputedly unable to support himself due to his mental retardation, was properly found by the trial court as never having reached the "age of majority" as defined in Ohio statutes. The court interprets that statute in light of common law precedent going back to Kent Commentaries on American Law as establishing "the notion that mentally or physically disabled children should be excepted from a strictly age-based emancipation rule."
Wiczynski v. Wiczynski, 2006 Ohio 867; 2006 Ohio App. LEXIS 773 (February 24, 2006)
February 14, 2006
Case Law Development: Interpreting Requirements for Post-Majority Educational Child Support
Missouri’s child support statute provides that, to qualify for post-majority educational support, the child must submit to the parents a school transcript at the beginning of each semester. In this case, the judges of the Missouri Court of Appeals exchanged lengthy dissertations on the meaning of the phrase “at the beginning” – with the dissent arguing that the phrase must meet before or on the first day of classes, while the majority contemplates a more flexible case-by-case determination of whether the requirement is met. With a subtextual debate over Proust and Churchill’s value as sources for interpreting legislative meaning, the case is a lively reminder that much of family law advocacy requires highly refined skills of statutory construction.
Owsley v. Brittain, 2006 Mo. App. LEXIS 148 (February 7, 2006)
Opinion on the web (last visited February 14, 2006 bgf)
February 03, 2006
Case Law Development: Court may Strike Answer and Estop Father From Denying Income Amount as Sanction for Refusing to Comply with Discovery
The Texas Court of Appeals has dealt another blow against hard-ball litigation tactics. In a paternity case, Father stonewalled repeated orders to provide financial information in discovery for nearly a year when the court finally ordered that he comply with discovery or have his answer stricken. Father continued to refuse to provide the information and the court struck his answer and estopped him from denying that his income was less than $6,000 a month (the amount mother was claiming as his income). The court ordered that Father pay $1221 monthly child support and father appealed, arguing that the “death penalty” sanction of striking his answer and basing child support on an income he was estopped from denying constituted a denial of his due process. The court of appeals agreed with the trial court that the refusals to comply with discovery were Father’s fault and did not implicate his attorney. The court found that the sanction had a direct nexus to the misconduct and was not unjust or excessive.
In the interests of J.D.N., 2006 Tex. App. LEXIS 742 (January 27, 2006)
Opinion available on the web (last visited February 2, 2006 bgf)
January 11, 2006
Canadian Woman Sues Chicago Priest for Child Support
A Canadian woman, Sandra Ring, has sued Jason Martin, a Roman Catholic priest, in a Canadian court seeking child support for a child born in 2004. According to the Chicago Tribune, the two were former childhood sweethearts and were reunited in Canada when in 2003 Ring, who was married to another man, sought counseling to deal with the loss of a daughter who died in childbirth. Their meeting rekindled their former relationship and subsequently Ms. Ring became pregnant. Martin later had a change of heart and was transferred from Canada to Chicago. Source: Manya A. Brachear, Chicago Tribune, chicagotribune.com. For the details regarding this story, please click here (last visited January 11, 2006, reo).
January 08, 2006
Case Law Development: Parent Receives Child Support Credit for Social Security Retirement Benefits Paid to Child
The Tennessee Court of Appeals recognized a child support credit for Father for the amount of social security payments made to child upon Father's retirement, even though the effect of those payments was to displace the child's own social security disability payments, thus lowering the child's overall resources. The court noted that settled law provided that when a parent retires, the amount of social security paid to that parent's child should be credited against the parent's child support obligation. However, in this case, the child had been receiving social security disability payments of only $69 less than the amount of the social security payments. Since the retirement dependency payment would replace rather than supplement the disability payment, mother argued that Father should not be given a credit for the entire amount of the social security payment.
The court concluded that, while mother's equitable argument "strikes a responsive chord, it cannot carry the day based on the law applicable to this case. As the law existed at the time of the hearing, an obligor parent's child support obligation was a function of the parent's income, the number of children to be supported, and several well defined grounds for deviation. .... The courts are not permitted to take the other financial resources that might be available to the child into consideration. "
Martella v. Martella, 2006 Tenn. App. LEXIS 11 (January 5, 2006)
Opinion on the web at http://www.tsc.state.tn.us/opinions/tca/PDF/061/MartellaESFopn.pdf (last visited January 8, 2006 bgf)
Virginia Panel Issues Comprehensive Review of that State’s Child Support Guidelines
The Commonwealth of Virginia Child Support Guideline Review Panel issued a comprehensive report on October 31 of this year. Both the Executive Summary and full report are now available on the web. The report contains a number of suggested changes to existing Virginia Child Support law. (Tip provided by WSC.) The comprehensive report may be found at this web site (last visited January 8, 2006, reo).
December 24, 2005
U.S. Senate Approves Measures to Assist Low-Income Families Receiving Child Support
The United States Senate on Wednesday adopted measures giving states greater flexibility and more financial incentives to pay current and former welfare recipients the full child support owed them. For low-income families, who must forfeit their child support checks to receive welfare, this was good news. Traditionally, the federal government has required states to return at least a portion of the child support check as payback for cash benefits received by families on public assistance. The measures still must be approved by the House of Representatives. Under the bill, states would be allowed to return all the child support monies owed to families formerly on assistance. States could also return all child support payments to families currently on public assistance, but would have to themselves reimburse the federal government in part for federal benefits paid these families. Source: Judith Davidoff, Capital Times, Madison.com. For more information, please click here (last visited December 24, 2005, reo).